{"id":52280,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/is-joe-lieberman-the-new-anthony-kennedy-and-will-the-new-congress-function-like-the-closely-split-seesawing-supreme-court.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"is-joe-lieberman-the-new-anthony-kennedy-and-will-the-new-congress-function-like-the-closely-split-seesawing-supreme-court","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/is-joe-lieberman-the-new-anthony-kennedy-and-will-the-new-congress-function-like-the-closely-split-seesawing-supreme-court.html","title":{"rendered":"Is Joe Lieberman the New Anthony Kennedy? And will the New Congress Function Like the Closely-Split, Seesawing Supreme Court?"},"content":{"rendered":"\n
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Is Joe Lieberman the New Anthony Kennedy? And will the New Congress Function Like the Closely-Split, Seesawing Supreme Court? <\/h1><\/td>\n <\/tr>\n

By EDWARD LAZARUS<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Nov. 09, 2006<\/td>\n\n <\/tr>\n <\/table>\n

As I write, it appears that the Democrats, in addition to garnering a working majority in the House of Representatives, will also capture a Senate majority, though by a total of only about 10,000 votes in Virginia and Montana. In some sense, this reflects a powerful Democratic wave, especially considering the degree to which political gerrymandering has reduced the number of congressional seats that were even remotely in play.<\/p>

But all this is easily overplayed – as the Democrats’ slim edge in the Senate attests. We are a 50-50 nation. And that’s why today’s headlines about a Democratic sweep into the future are just as overblown as was all the talk, exactly two years ago, about the installation of a permanent Republican majority in Washington. <\/p> \n\n

The truth is that in a nation so closely divided, even a small swing one way or another can produce dramatic effects, as challengers of one party oust incumbents from the other party by incredibly small margins. That’s pretty much what happened on Tuesday.<\/p>

In this regard, I was struck by how closely our electoral politics mirrors our Supreme Court politics. In both the House and the Senate, two deeply polarized factions pivot around a very narrow group at the center. So, too, at the Court, where a wing of four relatively liberal justices (Breyer, Ginsburg, Souter, and Stevens) and a wing of four quite conservative justices pivot (Roberts, Alito, Scalia, Thomas) around Justice Anthony Kennedy, who often has the power to cast the key “swing vote” that dictates cases’ results.<\/p>

Will Independent Senator Lieberman Play a Justice-Kennedy-Like Role?<\/b><\/p>

At the Supreme Court, this makes for a rather bumpy ride ideologically — as the results in cases swing back and forth depending on which coalition Kennedy joins. On issues of civil liberties, this dynamic has created a number of quite liberal rulings, most notably the Court’s decision in Lawrence v. Texas<\/i><\/a>, giving constitutional protection to the decision to engage in consensual homosexual sex. In other areas of law – federalism, for example — Kennedy’s decisionmaking has, by contrast, produced markedly conservative Court rulings.<\/p>

In Congress, the same seesaw dynamic may now similarly take hold. In the Senate, for example, it is easy to imagine a scenario in which former Democrat, and now Independent, Senator Joe Lieberman plays much the same role Kennedy plays on the Court. <\/p>

Even assuming the Democrats, as currently seems likely, win both the Virginia and Montana Senate races, their majority in the Senate will hinge entirely on the acquiescence of Lieberman; without him, the Senate will likely be deadlocked, 50-50, with the tiebreaking vote cast by Vice-President Cheney. <\/p>

That dependency puts Democrats in a precarious position indeed. Lieberman has already declared a reduced allegiance to his former political party (somewhat understandably, as many in the party deserted him to support candidate Ned Lamont) and, in contrast to virtually all Democrats, supports President Bush on the key issue of Iraq policy.<\/p> \n

Lieberman’s policy views will often be at odds with those of the significantly more liberal democratic leadership; indeed, just such differences led some Democrats to support Lamont. Accordingly, it seems altogether plausible that the legislative initiatives emerging from the Senate will lurch from left to right politically, depending in large part (if not solely) on what one Senator – Lieberman – thinks about the issue in question. And that sounds an awful lot like what happens with Kennedy at the Supreme Court.<\/p>

Will Strong Centrists Be Calling the Shots Now? Unfortunately, Probably Not.<\/b><\/p>

Of course, there are many differences between the workings of the legislative branch and the Supreme Court, which means we should be chary about drawing too many parallels. But the similarities in the positions now occupied by Kennedy and Lieberman do raise a question of fundamental importance: What kind of 50-50 nation are we?<\/p>

Looking at the election returns, one might come to the conclusion that we are – or ought to be — a nation with a robust political center. <\/p>

Just look at the kind of Democrats who won on Tuesday – and where they won. Bob Casey, who unseated Rick Santorum, is more liberal than Santorum but he’s no lefty, as his pro-life and pro-gun views reflect. Jon Tester, who looks to have ousted Conrad Burns in Montana, is cut from the same cloth, and featured in his campaign support for gun rights and opposition to gay marriage. Overall, the Democrats made their most dramatic gains in the heartland of Indiana, Ohio, and Kentucky. They had to recruit pretty conservative candidates to do so.<\/p>

On the other side, the Republicans’ biggest victory of the night came in California, where Governor Arnold Schwarzenegger resurrected his political fortunes — but only by abandoning his conservative GOP base, distancing himself from Bush, and tacking dramatically to the left. (In June, Schwarzenegger, for example, refused the President’s request to send more California National Guard troops to police the Mexican border.)<\/p>

One would think that the success both parties enjoyed in rushing towards the center might generate, if not a greater national consensus, at least a more decent political environment — one which would permit a genuine consensus about the common good and how to advance it. <\/p>

But on this score, it seems to me that the appearance of centrism is in part an illusion. <\/p>

Rather Than Truly Centrist Politicians, We Often See Political Chimeras<\/b><\/p>

By and large, a “moderate” in our contemporary political culture is not someone whose views consistently mediate between political extremes across a broad range of issues. Instead, a moderate is (and I am over-generalizing, I realize) someone who has a collection of views, some of which are strongly on the right side of the political spectrum, and others of which are strongly on the left. Rather than being some shade of purple (red mixed with blue), a moderate is likely to be a two-tone beast that is half red and half blue: a political chimera.<\/p>

For example, a strongly anti-war, pro-life Democrat is routinely categorized as a centrist or moderate. But this is true only when the politician’s views are considered in aggregate. On the separate issues, this type of Democrat is not “moderate” at all, but rather a potentially polarizing figure – just from different ends of the political spectrum, depending on the issue. The same might be said, too, of a pro-war, pro-choice Republican such as, for example, Rudolph Giuliani. <\/p>

This isn’t a political center; it’s a fool’s-gold version of one. What appears to be a massing of moderates disguises incredibly deep, closely contested, and perhaps uncompromisable divisions over individual issues. <\/p>

It seems unfortunate, however, that few, if any, are even contemplating plausible compromises on the key issues – such as, for instance, allowing abortion, but no longer in the fifth or sixth month of gestation (except in cases where life or health is imperiled); offering nationwide domestic-partnership laws for gay couples that equalize benefits, but stop short of deeming the unions “marriage”; or supporting the continuation of the Iraq War because of our duty to stabilize Iraq, while vowing never to intervene without provocation again (and making that vow a law, or at least a Congressional resolution). <\/p>

Politicians and Justices Who Alike Are Disinclined to Offer True Compromises<\/b><\/b><\/p>

The incredible nastiness of current political campaigns reflects this state of affairs. Because both sides see politics not as an exercise in compromise and consensus, but as an issue-by-issue winner-take-all battle, all too often the ends come to justify the means. <\/p>

In this too, our body politic bears more than a passing resemblance to our Supreme Court. Many of the issues that come before the Court don’t make for ready compromise. Either you believe Roe v. Wade<\/i><\/a> <\/i>is illegitimate – or not. Either you think the Constitution outlaws affirmative action because it demands that government be color-blind – or you don’t. Either you believe the Constitution permits the execution of fifteen-year-olds – or you don’t.<\/p>

For many of the justices, these are all-or-nothing propositions. And because the stakes are so high, the Court itself has been prone to lasting and bitter division.<\/p>

Some would say we are entering a new era. At the Court, Chief Justice John Roberts claims to be a consensus builder eager to issue more and more unanimous opinions. (So far, the Court has managed this only by ducking hard issues, not by compromising on them).<\/p>

By the same token, our political leaders today are spouting encomiums to the idea of cooperation and conciliation. But will they take their own advice, and do the hard work of negotiation and compromise? <\/p>

Translating these intentions into governance – legislative, executive, or judicial — will be a Herculean task. We’ve been hammering away at the politics of division for so long, it’s hard to conceive of our political leadership putting down the cudgels now. Unfortunately, our kind of 50-50 split is damn hard to bridge.<\/p> \n\n\n<\/span>\n\n\n\n

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\n\n\n<\/a>\nA former federal prosecutor, Edward Lazarus is the author of two books — most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court<\/i>. \n

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